Roberts’s Incremental Approach Frustrates Supreme Court Allies

WASHINGTON — When the Supreme Court term started last fall, it seemed that the legal landscape might soon be littered with corpses of overruled precedents. Briefs in at least eight cases asked that important decisions be overturned.

Come June, though, all the precedents survived. Some were battered; some were teetering; and some were hollowed out. But all lived, at least in name.

This was a disappointment to the court’s three most conservative justices, and it illuminated a fault line on the court’s right side.

By my count, there were 13 unambiguous votes to overrule precedents last term. Eleven came from the court’s three most conservative members: five from Justice Clarence Thomas, four from Justice Antonin Scalia and two from Justice Samuel A. Alito Jr. (Justices Anthony M. Kennedy and Ruth Bader Ginsburg pitched in with one vote each.)

All of those frustrated statements came from justices on the winning side. They were largely directed at Chief Justice John G. Roberts Jr. Their message: He was moving too slowly.

“It does seem as if the chief justice has adopted a practice, in some cases, of voting with a conservative majority but not ruling as broadly as some others want to do,” said Paul M. Smith, a prominent lawyer who argues frequently before the court. “A large part of this is avoiding overruling prior cases expressly.”

To be sure, the majority opinion could not find enough bad things to say about the precedent, Abood v. Detroit Board of Education, as Justice Elena Kagan said in dissent.

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Paul M. Smith, a prominent Supreme Court advocate, has noted that the chief justice has adopted a practice, in some cases, of voting with a conservative majority but not ruling as broadly as some others want to do.CreditMonica Almeida/The New York Times

“Readers of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents — and that the majority could not restrain itself from saying (and saying and saying) so,” she wrote. But, like the other battered precedents, Abood survived.

Why are so many precedents under assault?

Irving L. Gornstein, who directs the Supreme Court Institute at Georgetown University, said the retirement of Justice Sandra Day O’Connor in 2006 “has left many precedents vulnerable.” She had cast the decisive vote in many closely divided cases, and her replacement by the more conservative Justice Alito altered the balance of power on the court.

Professor Gornstein added that the court’s decisions in 2010 in Citizens United, which allowed unlimited campaign spending from corporations and unions, and in 2013 in Shelby County v. Holder, which struck down a key part of the Voting Rights Act, altered the climate for advocates who appear before the court.

Those decisions, he said, “emboldened parties to seek overruling and not just narrower paths to victory.”

They may have succeeded in some cases last term, even if the court did not quite say so. Indeed, dissenting justices on both sides of the ideological divide accused the majority of effectively overruling earlier decisions.

In a death penalty case from Florida, Justice Alito, writing a dissent for the court’s four-member conservative wing, said the majority had silently overruled a part of a 2002 decision that left to the states the application of a ban on the execution of the mentally disabled.

Similarly, in the court’s latest campaign finance case, Justice Stephen G. Breyer, writing a dissent for the four-member liberal wing, said the majority had silently overruled the part of the Buckley decision that had upheld overall contribution caps.

All of this called to mind a 2010 article in The Georgetown Law Journal in which Barry Friedman, a law professor at New York University, examined the Roberts court’s propensity for “stealth overruling.”

Mr. Smith said there was a method to Chief Justice Roberts’s quiet and incremental approach.

“The chief likely is motivated by trying to conserve the court’s perceived legitimacy by avoiding express overrulings where possible and sometimes by bringing more liberal justices over to his side,” Mr. Smith said.

The general feeling on the left as it surveyed the work of the Roberts court this term was captured by David Cole, a law professor at Georgetown, in The New York Review of Books. “It could have been worse,” he wrote.

The frustration of the court’s three sore winners supports that theory. But Professor Friedman said liberals should hope for a more candidly activist court.

“It can hardly escape notice these precedents are all still at risk,” he said. “The court is moving cautiously so as not to stir up trouble. But from the perspective of achieving legal and political change, it might benefit the left if the justices were more aggressive.”

A version of this article appears in print on , on Page A14 of the New York edition with the headline: Precedents Stand Despite Pressure as Chief Justice Takes Gradual Tack. Order Reprints | Today’s Paper | Subscribe

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